### U NITED 

### S TATES 

### N AVY



### – M ARINE 

### C ORPS 

### C OURT OF 

### C RIMINAL 

### A PPEALS

_________________________

No

. 201400241

_________________________ UNITED STATES OF AMERICA

Appellee

v.

DAVID MONTALVO III

Lance Corporal (E

- 3 ) , U.S. Marine Corps

Appellant

________________________ _ Appeal from the United States Navy

- Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel C.J. Thielemann

,

U.S. Marine Corps

. For Appellant: James S. Trieschmann

, Jr., Esq.; Lieutenant

Christopher C. McMahon, JAGC, U .S. Navy. For Appellee: Ma jor Cory A. Carver, U.S. Marine Corps; Lieutenant

James M. Belforti, JAGC, U.S. Navy

.

_________________________

Decided 15 Dec ember 2016

_________________________

Before C AMPBELL

, R UGH

, and H UTCHISON

, Appellate Military Judges

_________________________

T his opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Practice and

Procedure 18.2.

_________________________ RUGH, Judge :

A general court

- martial consisting of officer and enlisted members

convicted the appellant, contrary to his pleas, of two specifications of rape in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920. The members sentenced the appellant to nine years’ confinement, reduction to pay grade E

- 1, and a
dis honorable discharge. The convening authority (CA) approved the sentence as adjudged.United States v. Montalvo, No. 201400241

2 The appellant originally raised two assignments of error (AOE): (1) that the military judge erred by denying the appellant’s request for a

continuance 1 and (2) that the a ppellant was denied his Sixth Amendment right to effective counsel in the post

- trial phase of his

court

- martial. 2

On 27 May 2015 this court found merit in AOE (1) and set aside the findings and sentence. 3 However, on 10 July 2015 we reconsidered our
decis ion and returned the record for a hearing held pursuant to United States v. DuBay , 37 C.M.R. 411 ( C.M.A. 1967). On 3 February 2016 we
returned the record for an additional DuBay hearing, and the record and results of the hearing were returned to us on 29 A pril 2016.

The appellant now raises as supplemental error that the military judge erred in the findings instructions provided to the court

- martial
members. 4

1 I. WHETHER THE MILITARY JUDGE ERRED IN LIMIT ING [THE APPELLANT’S] CONSTIT UTIONAL RIGHT TO PRE SENT A DEFENSE BY DENYING A REQUEST FO UR DAYS BEFORE TRIAL FOR A CONTINUANCE TO

INVESTIGATE NEWLY DI SCOVERED INFORMATION WHEN SUCH

INFORMATION WAS RECE IVED LATE DUE TO GOV ERNMENT’S FAILURE TO

TIMELY COMPLY WITH T HE RULES OF DISCOVER Y AND THE DEFENSE WA S

OTHERWISE INCAPABLE OF DISCOVERING THIS INFORMATION BECAUSE

THEY WERE PROHIBITED FROM QUESTIONING THE ALLEGED VICTIM

.

2 II. WHETHER [THE APPELLA NT] WAS DENIED HIS S IXTH AMENDMENT

RIGHT TO EFFECTIVE A SSISTANCE OF COUNSEL IN THE POST

- TRIAL

PHASE OF HIS COURT

- MARTIAL WHEN DEFENSE COUNSEL FAILED TO REQUEST DEFERMENT OF CONFINEMENT AND DE FERMENT IN

REDUCTION OF RANK DE SPITE THE FACT THAT [THE APPELLANT] SPECIFICALLY REQUEST ED THAT THEY DO SO.

3 United States v. Montalvo , No. 201400241, 2015 CCA LEXIS 218 (N

- M. Ct. Crim. App. 27 May 2015).

4 III. THE MILITARY JUDGE I S REQUIRED TO ACCURA TELY INSTRUCT

THE MEMBERS ON THE L AW. HERE, THE MILITA RY JUDGE INSTRUCTED THE MEMBERS, “IF, BA SED ON YOUR CONSIDER ATION OF THE EVIDENC E,

YOU ARE FIRMLY CONVI NCED THAT THE ACCUSE D IS GUILTY OF THE CRIME CHARGED, YOU M UST FIND HIM GUILTY. ” WAS THIS PLAIN ERR OR?

T his supplemental AOE was inadvertently styled as AOE (4) instead of AOE (3). Regardless, in accordance with our holding in United States v. Rendon

,

__ M.J.

__ , 2016 CCA LEXIS 643, at *26 (N

- M. Ct. Crim. App. 1 Nov 2016), we summarily reject the supplementa l AOE. United States v. Clifton , 35 M.J. 79 (C.M.A. 1992).United States v. Montalvo, No. 201400241

3 Having carefully considered the record of trial, oral argument, and the pleadings, we find no error materially prejudicial to the appellant and affirm the findings and sentence below.

I. B ACKGROUND

At around 2200 on 4 October 2012, Ms. VAM and her coworker visited the barracks located on board Camp Pendleton, California, to meet up with her cowork er’s boyfriend, a Marine. VAM was introduced to the appellant, and the four of them

— VAM, her coworker, her coworker’s boyfriend, and the appellant

— socialized in the appellant’s room for several hours. VAM and her coworker then made their “good byes” and re turned to the coworker’s home.

At around 0300, VAM’s coworker received a text message from her boyfriend asking her to come back to the barracks for the night. VAM accompanied her, uncomfortable with her friend driving back to the

base alone so late at ni ght. They again met up in the appellant’s room, finding the appellant extremely intoxicated. Shortly thereafter, VAM and the appellant were left alone in the room when her coworker and her coworker’s boyfriend left.

At around 0330 the appellant asked f or VAM’s help to find his phone. She complied, calling him from her phone to hear it ring. Immediately after this, the appellant moved behind her and began removing her clothing. Ignoring her pleas to stop, the appellant pushed
VAM onto his bed and forced her to engage in vaginal and anal intercourse. Afterwards, VAM dressed and lay awake in the room’s

other bed until around 0630 when the appellant departed for morning

muster.

VAM reported the assault that evening. A subsequent medical exam revealed injuri es to VAM’s vagina and rectum. She had large bruises on her breast and arm. The appellant’s DNA was discovered on VAM’s body and in the crotch of her underwear, and VAM’s DNA was discovered in the crotch of the appellant’s underwear.

II. D ISCUSSION

A. De nial of the d efense’s r equest for c ontinuance 5

The case was referred to a general court

- martial on 26 June 2013, and trial was set for 21 October 2013. However, on 8 October 2013 the military judge granted a continuance until 27 January 2014 due to the

5 Raised as AOE (1).United States v. Montalvo, No. 201400241

4 un availability of VAM’s coworker, who was a potential defense

witness.

In mid

- December 2013, the defense requested the g overnment subpoena VAM’s phone and text message records based on apparent discrepancies between VAM’s previous statements and the forensi c evaluation of her cell phone. The g overnment agreed and subpoenaed the records from VAM’s service provider, AT&T, the day after the defense request.

When, by 22 January 2014, the records still were n o t available, the defense requested an open continuanc e until the records could be produced. As a substitute for the AT&T records, VAM voluntarily provided a copy of her phone bill for the relevant time period. The bill showed 86 text messages between VAM and an unknown individual beginning on the evening of 4 October 2012 and ending at 0252 on 5 October 2012, about 30 minutes before the assault.

Applying United States v. Miller , 47 M.J. 352 (C.A.A.F. 1997), the military judge denied the appellant’s continuance request, crediting in part his belief that, “ there’s already sufficient basis in the record for many levels of impeachment of the victim.” 6

By trial, the defense had identified the unknown text messenger as
Mr. DMN. While defense counsel was unable to communicate with DMN before trial, he did cross

- e xamine VAM on her interactions with
him:

Q. [civilian defense counsel]. Around 10:00 p.m. [on 4 October 2012]. Had you made any plans to see anyone else that evening? A. [VAM]. No.

Q. Okay. Were you texting with anybody that evening? A. Probably.

Q. If you were texting with somebody that evening, who do you think that was? A. It could have been quite a few people.

Q. Okay. Is it possible that you were texting with only one person that evening?

6 Record at 235.United States v. Montalvo, No. 201400241

5 A. I believe I was texting a few more than one person

that evening.

Q. Okay. If I tell you a phone number, I just want to see if you recognize a particular number

. . . A. I’m sure that I know the number, but I don’t know who it belongs to.

Q. Okay. Just as you are sitting here, you don’t recognize that number? A. Right. 7

Later, counsel returned to this line of attack:

Q. Do you recall whether or not you were texting repeatedly one person throughout that evening? A. I’m sure that I was, but I don’t remember specifically who it was.

Q. Okay. Does the name [DMN] ring a bell?
A. No.

Q. You are not reminded

-- A. I know a few people [with that first name]. I’m not
sure of last names.

Q. Okay. The name

. . . would have a re ally kind of unusual spelling? . . . Is that

-- A. I don’t know how to spell

-- I don’t pay attention to the spelling of my friends’ names. 8

The defense counsel also cross

- examined the Naval Criminal Investigative Service (NCIS) special agent, who originally questioned both VAM and her coworker, regarding their interactions with DMN:

Q [civilia n defense counsel]. Did you

-- did any part of the investigation deal with an issue of whether or not between the time that [VAM] alleges that she was at

7 Id. at 682.

8 Id. at 690.United States v. Montalvo, No. 201400241

6 Camp Pendleton the first time when she leaves with [her coworker] and then comes back the second time where the alleged assault takes place [?] Did you take any investigations regarding that period of time? A [NCIS special agent]. Other than interviewing her friend that was with her, no.

. . . . Q.

. . . You had a disconnect in the statement of one

witnes s and another witness as to the issue of whether or

there [sic] was a third party that they met with between the visits to Camp Pendleton.
A. Correct.

Q. Right?
A. Correct.

Q. One witness is saying, yes, we did. We hung out with him for a while, and one is saying, that [n]ever happened at all.
A. Correct.

. . . . A. [The coworker] says that there was

– I mean, our

– [VAM] says that she never met anybody at her house on
that date.

Q. She says they didn’t

– she says that they did not

– A. Correct.

Q. Bu t [the coworker] said that they did, didn’t she?
A. Correct. 9

. . . .

9 Id. at 58 2

- 8 4.United States v. Montalvo, No. 201400241

7 Q. Through midnight all the [sic] up to 2:52 a.m. that [VAM] was texting and exchanged 86 texts sent and received with this person. Would that surprise you to
know that?
A. Yes. 10

Thi s point was reiterated by the defense counsel during closing argument:

What about the differing accounts between [the coworker] and [VAM]? Remember, they were having a

– there was a disconnect in NCIS’s mind whether or not between the two trips to Pendleto n they might have met another man. Okay, significant, insignificant, don’t know, but it was a story in which [VAM] is saying one thing and another witness is saying another. 11

Neither VAM’s coworker nor the coworker’s boyfriend testified at trial, and the question of the third man was not raised other than as a point of inconsistency in VAM’s testimony.

On 10 July 2015 the record was returned for a DuBay hearing to explore the content and availability of evidence about the 86 text messages exchanged between DMN and VAM. On 3 February 2016 the
record was returned for an additional DuBay hearing to explain the content of VAM’s phone record produced by AT&T at the first DuBay hearing.

During those hearings, the DuBay judge determined that DMN and VAM exchanged texts on 4 and 5 October 2012 after meeting through an online dating service. 12 DMN was active in online dating and regularly communicated with and dated the women he met online. DMN typically engaged the women he met in a series of “20 Questions,” texting questions ranging from innocuous to provocative in order to gage whether there was mutual interest. 13

DMN and VAM began messaging each other on 4 October 2012 at 1913 and exchanged text messages with regularity (some 80 messages back and forth) until 5 O ctober 2012 at 0252. DMN then texted VAM

10 Id . at 622.

11 Id . at 910.

12 We will accept the factual findings of a DuBay military judge unless they are

cle arly erroneous. United States v. Brownfield , 52 M.J. 40, 44 (C.A.A.F. 1999).

13 Appellate Exhibit (AE) LXXIII at 2.United States v. Montalvo, No. 201400241

8 later that evening at 2123 and again a day later at 1345. 14 He received no response to either message.

DMN did not recall that any of their messages discussed the appellant or related to anything of a sexual nature.

DMN regularly deleted his text messages within a few weeks of the other person appearing to lose interest. When asked about the chances that he would still have copies of the text messages between him and VAM by the time of the appellant’s court

- martial, he responded, “slim to none” and “almost impossible.” 15 Likewise, Verizon

— DMN’s service provider

— maintained text message content for only three to five days, and AT&T didn’t maintain text message content at all.

A review of the records of activity for VAM’s phone showed an exchange of messages with DMN on 5 October 2012 ending at 0252. There were no additional text messages until her phone received an incoming message at 0912 later that morning. VAM’s phone placed one call to the appellant’s phone on 5 October 2012 at 0332 that lasted for 17 seconds but was not answered. Her phone did not send or receive another call until an incoming call was placed at 0709 later that morning. VAM’s phone electronically transferred data on 5 October
2012 at 0249 for ar ound 30 minutes. No other data transfer occurred until after 1130 later that morning. According to the records, VAM’s phone wasn’t used between 0332 and 0730 on 5 October 2012. 16

Regardless, the appellant still maintains that the military judge
abused his discretion in denying the defense’s second continuance request and that this denial prejudiced the appellant’s ability to confront VAM about contradictions between her testimony, her phone records, and DMN’s statement.

At trial, the appellant shoulders th e burden by a preponderance of

the evidence to show “reasonable cause” for the continuance request,
United States v. Allen, 31 M.J. 572, 620, 623 (N.M.C.M.R. 1990)

, aff'd, 33 M.J. 209 (C.M.A. 1991), and we will reverse a military judge’s

decision on a cont inuance request only for an abuse of discretion.
United States v. Miller , 47 M.J. 352, 358 (C.A.A.F. 1997)

. However, we need not decide whether the military judge abused his discretion if we first resolve that the appellant was not prejudiced by the denial of a

14 See AE LXIX at 4.

15 First DuBay Record at 44.

16 See AE LXXXIV.United States v. Montalvo, No. 201400241

9 continuance. United States v. Wellington

, 58 M.J. 420, 425 (C.A.A.F. 2003). For non

- constitutional error, 17 the appellant is warranted relief only when he demonstrates that the error materially prejudiced a substantial right. Art

. 59(a), UCMJ, 10 U.S. C. § 859 (2012).

Here the appellant was not materially prejudiced by the denial of the continuance as the matters that might have been discovered with
the addition of time would have been cumulative and of no more use than what was already available to them at trial.

The phone records and explanative testimony provided at the DuBay hearings closely corroborated VAM’s testimony at trial. From before 0300 to after 0730 on 5 October 2012, VAM made use of her phone only once

— the call she made to the app ellant’s phone at 0330, moments before the assault occurred. Otherwise, she made no other calls, exchanged no text messages, and received no data indicative of other smart phone usage. This is wholly consistent with her description of the attack.

Similarly , DMN’s testimony at the DuBay hearing was largely consistent with VAM’s trial testimony. Neither DMN nor VAM appeared to remember the other with any great specificity,
corroborative of a short

- term, online encounter that failed to develop
much further. At the DuBay hearing, DMN vaguely recognized pictures of VAM and her coworker as the same two women he visited

17 We recognize that, in some cases, the denial of a continuance may impac t an appellant’s meaningful opportunity to present a complete defense. Under such circumstances where the appellant’s Sixth Amendment guarantee to the effective

assistance of counsel is infringed, we test for harmlessness beyond reasonable doubt.

See Kansas v. Ventris

, 556 U.S. 586

, 590 (2009) ( holding that the Sixth Amendment right to counsel includes “the opportunity for a defendant to consult with an attorney
and to have him investigate the case and prepare a defense for trial”) ( citation and

internal quotation marks omitted) ; United States v. Gaddis

, 70 M.J. 248, 252 (C.A.A.F. 2011) (holding that the right to counsel extends to the ‘ “ meaningful opportunity to present a complete defense” ’ ) ( quoting Holmes v. South Carolina

, 547
U.S. 319, 324 (2006)) ; Chapman v. California

, 386 U.S. 18, 24 (1967 ) (“[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”)

. But s ee United States v. Bartlett

, 66 M.J. 426, 430 (C.A.A.F. 2008) (“There is a strong presumpt ion that an

error is not structural

, ” meaning that most are not significant enough to entirely
“obviat [e] the need to show prejudice” at all) (citing Rose v. Clark

, 478 U.S. 570, 579 (1986))

.

Under the circumstances of this case, we find the right to the effective assistance

of counsel was not implicated by the military judge’s ruling, and we apply the prejudice standard applicable to non

- constitutional error.United States v. Montalvo, No. 201400241

10 one night in the fall of 2012 when the three socialized at a house, briefly went shopping, and made food back at the house before he was

ushered ou t unceremoniously. However, DMN’s memory and description of that meeting did not correlate with the frequency of his text messages with VAM as reflected in the AT&T records for 4 and 5 October 2012, making it very unlikely that this meeting occurred on
the night of 4 October 2012. Regardless, he never saw either woman again after that meeting. Likewise, VAM denied making plans to meet

with DMN

— or anyone else

— in between visits to Camp Pendleton on 4
October 2012.

DMN’s vague memory of meeting VAM and VAM’s d enial of meeting anyone the night of 4 October 2012 were arguably contradictory. And the defense made much out of this proposed contradiction; challenging the victim twice on the matter, examining the NCIS special agent at length about it, and raising it a gain during closing argument. However, despite previously characterizing the
defense’s cross

- examination on this matter as “devoid of impeachment value,” 18 it now appears that all possible value was extracted from the possible contradiction, and further inv estigation has yielded nothing else of relevance. Sometimes when life gives you lemons, you can only make lemon juice.

B. Post

- trial i neffective a ssistance of c ounsel 19

In an unsworn declaration submitted to the court on 30 October 2014, the appellant all eged that, while meeting with his trial defense counsel for the purpose of preparing an appellate rights statement prior to the announcement of sentence, he instructed counsel to request deferment of any sentence to confinement and reduction in pay grade. This desire was reflected in a statement dated 30 January 2014 and signed by the appellant and his three trial defense counsel. 20

On 11 June 2014, the trial defense counsel submitted a robust request for clemency which included thirty enclosures and request ed the CA set aside the findings or

, in the alternative, reduce the term of confinement or the dishonorable discharge. However, neither the defense’s clemency request

, nor the accompanying letter from the appellant

, requested deferment of confinement or re duction in grade.
On 1 9 May 2014, prior to submission of defense’s clemency request, the

18 Montalvo , 2015 CCA LEXIS 218, at *16

.

19 Raised as AOE (2).

20 Motion to Attach Affi davit of th e Appellant of 30 Oct 2014, Appendix 2.United States v. Montalvo, No. 201400241

11 s taff j udge a dvocate (SJA) provided his recommendation to the CA, but noted that, “ [ t ] here have been no requests to defer any part of the

sentence

. . . .” 21 The 16 Jun e 2014 addendum to the SJA’s recommendation was silent on any deferment requests. On 18 June 2014, the CA approved the sentence as adjudged noting that he had received no requests to defer any part of the sentence.

The Sixth Amendment right to effective as sistance of counsel at

courts

- martial is a fundamental right of service members. United States v. Knight , 53 M.J. 340, 342 (C.A.A.F. 2000) (citing United States
v. Palenius , 2 M.J. 86 (C.M.A. 1977)). That right extends to post

- trial proceedings. United Sta tes v. Cornett , 47 M.J. 128, 133 ( C.A.A.F. 1997). Ineffective assistance of counsel involves a mixed question of law and fact, but whether counsel was deficient and whether the deficiency was prejudicial are reviewed de novo

. United States v. Anderson , 55 M.J. 198, 201 (C.A.A.F. 2001) ; see also United States v. McClain , 50 M.J. 483, 487 (C.A.A.F. 1999).

We apply the two

- prong test set forth by the Supreme Court in Strickland v. Washington , 466 U.S. 668, 687 (1984) to determine
whether counsel rendered inef fective representation. “The burden on each prong rests with the appellant challenging his counsel’s performance.” United States v. Davis , 60 M.J. 469, 473 (C.A.A.F. 2005). The first prong requires the appellant to show that counsel’s performance fell belo w an objective standard of reasonableness, indicating that counsel was not functioning as counsel within the meaning of the Sixth Amendment. United States v. Terlep , 57 M.J. 344, 349 (C.A.A.F. 2002). Our review of counsel’s performance is highly
deferentia l and is buttressed by a strong presumption that counsel provided adequate representation. United States v. Garcia , 59 M.J. 447, 450 (C.A.A.F. 2004).

The second prong requires a showing of prejudice resulting from counsel’s deficient performance. Strickl and , 466 U.S. at 687. With regards to post

- trial claims of ineffective assistance of counsel, courts must give an appellant the benefit of the doubt and find that “there is material prejudice to the substantial rights of an appellant if there is

an error a nd the appellant ‘makes some colorable showing of possible prejudice.’” United States v. Wheelus , 49 M.J. 283, 289 ( C.A.A.F. 1998) (quoting United States v. Chatman , 46 M.J. 321, 323

- 24 ( C.A.A.F. 1997)). If the appellant fails to make a “colorable showing of possible

21 SJA Recommendation at 2.United States v. Montalvo, No. 201400241

12 prejudice,” we need not determine whether trial defense counsel’s performance was so deficient as to render him ineffective. 22

In general, deferment of a sentence to confinement or reduction in grade “ is a postponement of the running of the sen tence. ” R ULE FOR
C OURT S

- M ARTIAL (R.C.M.) 1101(c)(1), M ANUAL FOR C OURTS

- M ARTIAL

, U NITED S TATES (2012 ed.) Deferment is not a form of clemency. 23 The appellant has the burden of demonstrating that his interest and the interest of the community in deferral out weigh the community’s interest in imposition of the punishment on its effective date. R.C.M. 1101(c)(3). Factors to consider in determining whether to defer a sentence to confinement or reduction in grade include: the probability of flight; the probability of the commission of other offenses, intimidation of witnesses, or interference with the administration of justice; the nature of the offenses including the effect on the victim; the sentence adjudged; the command’s immediate need for the accused; the
eff ect of deferment on good order and discipline; and the accused’s character, mental condition, family situation, and service record. Id.

Here, the appellant has provided little upon which a decision to defer his sentence to confinement or reduction in grad e might have
been based. 24 Absent such evidence, and given the nature of the offenses of which the appellant was convicted and his sentence to nine years’ confinement, we conclude that there has not been a colorable showing of possible prejudice. 25

22 See United States v. Datavs , 71 M.J. 420, 424

- 25 (C.A.A.F. 2012) (noting that courts are not required to determine whether counsel’s performance was deficient before first examining whet her the appellant suffered any prejudice).

23 R.C.M. 1 1 01(c)(1) , Discussion.

24 S ee Unites States v. Nicks

, No. 20110658, 2013 CCA LEXIS 789, *5

- 9

, unpublished op. (A. Ct. Crim. App. 30 Sep. 2013) (providing a helpful discussion of

the R.C.M. 1101 factors as they relate to requests for deferment and waiver of forfeitures). Moreover, simply indicating clemency desires on an appellate rights
form does “not set forth a prima facie case of ineffective assistance of counsel.” United

States v. Axtell , 72 M.J. 662, 66 4

- 6 5 (A

. Ct. Crim. App. 2013) (en banc)

.

25 Nicks , 2013 CCA LEXIS 789, at *8

- 9 (holding that the “[a]ppellant’s silence on appeal regarding the R.C.M. 1101(c)(3) burden and the factors articulated therein leads to but one conclusion: [the] appellant has f ailed to make a colorable showing of possible prejudice”)

.United States v. Montalvo, No. 201400241

13 III. C ONCLUSION

The findings and the sentence, as approved by the CA, are affirmed.

For the Court

R.H. TROIDL
Clerk of Court